Speaking at Thomson Reuters Australia’s Mental Health and Employment Law Conference, Jonathan Hamberger, deputy president, Fair Work Commission, spoke about the negative consequences workplace bullying can have on both the employee experiencing it and the business as a whole.
“Bullying is repeated, unreasonable behaviour that represents a threat to someone's health and safety,” Mr Hamberger told the crowd.
“Realistically, the cases we get anyway, are almost always the threat to the psychological wellbeing of the employee. I’ve never seen a bullying case that’s actually about physical threats... It’s usually psychological welfare.
“There’s a massive cost to bullying. Obviously it’s terrible for the person being bullied but it’s also a massive cost to the organisation. You get staff who are distracted, once people find out someone is claiming [bullying]. Often you get a lot of absenteeism. Once you get into a formal process, you're likely to get fatigue, lower employee engagement, you might have to pay people out, obviously there’s worker’s comp[ensation] costs, and there’s likely to be an investigation so a legal cost if you get that far.
“So there’s a hell of a lot of consequences coming from bullying that the organisation has got to deal with so avoid it if you can.”
Mr Hamberger said the primary reason people engage in such behaviour is poor management. He also explained that there’s usually a lack of awareness of how someone’s actions are being portrayed as bullying.
To combat bullying in the workplace, Mr Hamberger advised legal professionals to try to resolve things on an informal basis if possible, at first.
“I would try to avoid an investigation if you possibly can. Investigations often do more harm than good,” he said.
“Some organisations think ‘I’m going to have a zero tolerance approach to bullying’ but there's a very high cost to investigations. They are very stressful for everybody involved. They’re stressful for people who aren’t even involved but work in the same workplace. They cost a lot of money, they’re very distracting, and they don’t usually solve the problem. All investigations do is find out, maybe find out, what the facts are.
“Obviously, you have to do them sometimes, I’m not saying to never do an investigation. It’s obviously very important in some cases. If you’re going to sack someone, if you’re looking at something really serious of course you have to do an investigation. But a lot of bullying claims are really more about people putting their hands up about bad management, or people being nasty to each other in the workplace or making fun of someone.
“I'm not saying that’s not important but you’re not looking to get rid of anyone in those circumstances. You want to solve the problem and get people working together properly. You take an investigation in those circumstances you [can make the situation] much worse.”
The Thomson Reuters Australia’s Mental Health and Employment Law Conference also heard from Herbert Smith Freehills special counsel Heidi Fairhall on the seven biggest errors employers make when having to conduct a workplace investigation and when the most appropriate time is for employers to conduct a workplace investigation. The event also heard from KPMG Law partner James Simpson, who spoke about the issues commonly associated with terminating an employee for illness and medical incapacity reasons.